Talk of President Donald Trump possibly signing an executive order on religious freedom — which drew both criticism and praise — has been replaced with discussion about what happened to it and what a final version, if there is one, will look like.
A draft version of the executive order, called Establishing a Government-Wide Initiative to Respect Religious Freedom, had been widely criticised in late January by those who said it would legalise discrimination and was too far-reaching. It then failed to appear on the president’s desk while rumours circulated that a scaled-back version might appear eventually.
“We hope that President Trump and his administration will take action soon, especially to provide relief from the onerous HHS mandate,” said Baltimore Archbishop William Lori, chairman of the US bishops’ Ad Hoc Committee for Religious Liberty, referring to the mandate issued by the federal Department of Health and Human Services requiring most religious employers to provide coverage of artificial birth control for their employees even if they are morally opposed to it.
“Now that some of the Cabinet posts are being confirmed, we hope that concrete and immediate action is taken to protect religious freedom,” he said in a February 10 email to Catholic News Service.
The archbishop pointed out that Catholic leaders have been “asking the executive branch for more than half a decade now for an end to the coercive HHS mandate that requires the Little Sisters of the Poor and so many other faith-based ministries to either violate their faith or pay millions of dollars in fines to the federal government.”
He said he hoped the president would end the coercion of religious employers and also would “allow people of faith to have the freedom to serve others in all our ministries, including our soup kitchens, schools, adoption services, homeless shelters and refugee services.”
After a draft version of the executive order was leaked to the public, the US bishops posted an online letter for Catholics to send to the president urging him to sign such an order.
The four-page draft said that “Americans and their religious organizations will not be coerced by the federal government into participating in activities that violate their consciences.” It also noted that people and organisations do not “forfeit their religious freedom when providing social services, education or health care.” It cited the Religious Freedom Restoration Act, known as RFRA.
The bishops’ online letter supporting a religious freedom executive order stipulated that it should include some of the following provisions:
— Relief from the Affordable Care Act’s contraceptive mandate for religious employers who do not fit the mandate’s narrow exemption.
— Preservation of tax-exempt status for nonprofit groups that hold beliefs based on marriage and human sexuality.
— The ability of religious organisations that partner with the federal government to act according to their beliefs regarding marriage, human sexuality and the protection of human life at all stages.
— The ability of religiously affiliated child welfare providers to provide adoption, foster or family support services for children that coincide with their religious beliefs.
— Conscience protections about abortion in the individual health insurance market.
Richard Garnett, University of Notre Dame law professor, told CNS on February 13 that the Trump administration might hold off on signing some form of an executive order on religious freedom while there is so much attention on the proposed travel ban and upcoming confirmation hearings on a Supreme Court justice.
But Garnett said there are groups that have a real interest in the First Amendment Defense Act that will not be happy if the Trump administration “isn’t willing to follow through” on such an order.
The First Amendment Defense Act, first introduced in 2015 in both the House and Senate, would provide conscience protection for any person who believes marriage is the union of one man and one woman, preventing the federal government from discriminating against that person.
He noted that the measure is not likely to get passed by this year’s Congress, so the most likely way for a similar move to happen with federal support would be through an executive order signed by the president.
Garnett, founding director of new program at Notre Dame’s law school called “Church, State and Society,” said the draft executive order on religious freedom was misunderstood by those who said it would legalise discrimination. The order doesn’t legalise anything, he noted, nor is it currently against the law for religious institutions to take religion into account when hiring for example.
Another point of the draft version of the order, he said, is that it would make clear that those who are getting federal benefits such as grants or contracts, would not lose them because of a religiously motivated position.
His take on the draft is basically that it says the current administration supports RFRA and wants people to do their best to comply with it.
RFRA, a 1993 law that was highlighted in last year’s Supreme Court case with the Little Sisters of the Poor, states that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest.”